Water Law and Policy PDF

WATER LAW AND POLICY INTRODUCTION Water is a common chemical substance essential to all forms of life. It dissolves more substances than any other liquid including chemicals, minerals and nutrients. Water is an important resource for domestic, industrial, agricultural, and recreational purposes. It...

WATER LAW AND POLICY INTRODUCTION Water is a common chemical substance essential to all forms of life. It dissolves more substances than any other liquid including chemicals, minerals and nutrients. Water is an important resource for domestic, industrial, agricultural, and recreational purposes. It is also a receptor that can be impacted by developments and activities such as power stations, chemical works, quarries, hydropower facilities, waste-water treatment, ground water abstraction for water supply, reservoirs, urban land use, inland navigation and agriculture. Surface water can also cause flooding issues particularly where towns and cities impinge on natural flood plans of a river system. This is expected to worsen due to the effects of climate change. Reduced flow of water can impact the availability of as a resource downstream as well as aquatic ecology and sediment transport. Up to 70% of the earth’s surface is covered by water. About 98% of the earth’s water is found in oceans with only the remaining 2% being fresh water. 87% of the freshwater is stored as ice, 12% is stored as ground water and only 1% is stored in rivers and lakes meaning that there’s more freshwater stored underground in aquifers than on the earth’s surface. Lake Victoria with a surface area of approximately 59,947 km2 is the world’s second largest freshwater lake, Africa's largest lake, and the world's largest tropical lake. Its catchment area covers 169,858 km2. Fresh water is a scarce resource in Kenya and there is therefore a need to manage the water resources sustainably to ensure adequate supply of water to all Kenyans. Activities that can affect the water budget include: - Removal of forest cover (eg. affecting evapotranspiration) Dam construction (affecting flood pulse) Draining of wetlands and marshes (increasing runoff) Agriculture (increasing runoff) Water transfers (movement between catchments for drinking, irrigation or recreation) Abstraction of water for industry or farming Discharge from a waste water treatment plant 1 WATER POLLUTION Water quality can be affected by pollution from a wide range of human activities, including large and small industrial enterprises, the water industry, urban infrastructure, agriculture, transport and deliberate or accidental pollution incidents. The main components of water pollution are: - 1. Oxygen levels and organic pollution The concentration of dissolved oxygen in water can have important implications for wildlife and commercial fisheries. Oxygen depletion can occur through pollution, mainly by organic matter from sources such as sewage, soils, and agricultural or industrial effluents. High organic levels may be discharged from sewage treatment works, cattle yards, food processing industries, and the wood and paper industry. Dissolved oxygen is consumed by the respiration of microbes that degrade the organic matter. Low oxygen levels are particularly damaging in rivers, where fish and invertebrates require consistently high oxygen levels. Reduced oxygen levels can also lead to increased levels of potentially harmful chemicals (e.g. ammonia, methane, hydrogen sulphide, and heavy metals) by increasing their production or solubilities. 2. Thermal pollution The main source of thermal pollution is power stations which can increase the temperature of aquatic systems above the normal range. Thermal pollution makes water bodies uninhabitable for aquatic life and may lead to the local extinction of native species. 3. Acidification Acidification by acid deposition is now widespread, and many naturally acidic water bodies have become more acidified during the last few decades. Low pH affects many freshwater animals directly, but a major effect is that they increase the solubility of toxic pollutants such as aluminium. These conditions are highly injurious to many freshwater animals, and have diverse biological effects including changes in the abundance, biomass and diversity of invertebrates, plants, fish and amphibians. The effects occur wherever there is high rainfall and/or a prevalence of acidic soils, and freshwater ecosystems and fisheries can be seriously affected in these areas. 2 4. Eutrophication Excessive levels of nitrates and phosphates in freshwater systems can cause problems for both environmental and human health. The main source is runoff and leaching of fertilisers from farmland, although sewage effluent is thought to contribute 5% – 10% of the nitrate while detergents in wastewater contribute 10% to the overall phosphorous load. The principal cause of environmental damage is eutrophication of surface waters. This results in enhanced growth of macrophytes, phytoplankton and filamentous algae) followed by oxygen depletion of the water when they decay. Enrichment by nitrogen and phosphorus is often accompanied by organic wastes and associated deoxygenation. It can result in considerable loss of conservation value, including loss of species diversity and dominance by a few tolerant plants (particularly algae). Algal blooms also increase turbidity and hence light attenuation in water, and macrophytes can clog rivers. Eutrophication may also bring socio-economic problems by causing fish kills, increasing drinking water treatment costs, and (by promoting algal blooms) decreasing the amenity value of water bodies. 5. Sediments Sediments can be regarded as pollutants when present in unnaturally large quantities and/or when they are contaminated with chemical pollutants. Excessive sediment loads (especially of silts) can be derived from a variety of sources including agricultural land, bare urban surfaces and construction sites. Sediments from eroded soils or sewage may have a high organic content (causing deoxygenation), and where the site catchment is urbanised or intensively farmed, they may contain high levels of phosphates, metals, pathogens and pesticides. Impacts of polluted sediments can be particularly severe in lakes and ponds, where they may become trapped and hence accumulate, with potentially damaging effects on ecosystems. Reduction of light by suspended particulates inhibits macrophyte growth, and may favour algal dominance. Abrasive effects of suspended particulates in rivers may kill fish through gill damage; and in rivers with gravel bottoms used for spawning by fish (especially salmonids), siltation of gravels is of widespread concern as it leads to deoxygenation inside the gravels, starving the eggs and fry of oxygen. 3 6. Metals, microorganics, and other harmful chemicals Water pollution by these chemicals is largely due to discharges to rivers, runoff from roads and urban or agricultural areas. The metals of greatest concern in freshwaters include aluminium, chromium and heavy metals. Metal toxicity often varies, for example, zinc is relatively non-toxic to humans but very toxic to most fish, so levels of zinc acceptable in drinking water would be much higher than those acceptable for a fishery. Harmful chemicals that are commonly used worldwide have toxic effects on organisms when they accumulate above critical doses. These chemicals include pesticides and oil. Oils are commonly washed into freshwater systems from roads and industrial and development sites and boats also cause oil pollution. In addition to coating plants and animals, causing injury and death, oils can blanket the water surface, reducing oxygen diffusion. They also deoxygenate water as they are broken down. Oils contain many harmful chemicals, including carcinogens, such as polycyclic aromatics and phenols, which mix with water and poison aquatic life. 7. Pathogens There are four broad categories of human pathogens in temperate freshwaters – viruses, bacteria, protozoans (microscopic animals) and helminths (flatworms). Viral pathogens tend to have a limited host range, so sources are usually limited to waters containing human wastes such as sewage. There are more potential sources of bacterial and protozoal pathogens because these tend to have less specific requirements. WATER PROTECTION LAWS Water is a subject of great concern in Kenya and this is reflected in a large series of laws. in international law, access to clean, safe drinking water is recognised as a basic human right under the United National Declaration od 28th July 2020. In Kenya, the main laws are the Constitution of Kenya, 2010, and the Water Act, 2016. Constitution of Kenya, 2010 Article 43(1)(d) lists water as one of the economic and social rights and accordingly, every person has the right to clean and safe water in adequate quantities. 4 Article 56(e) enjoins the state to put in place affirmative action programmes designed to ensure that minorities and marginalised groups have reasonable access to water among other basic requirements. Article 62 defines public land vested in and held by the national government in trust for the people of Kenya and administered by the National Land Commission to include— Water catchment areas All rivers, lakes and other water bodies as defined by an Act of Parliament The territorial sea, the exclusive economic zone and the sea bed The continental shelf All land between the high and low water marks Article 204 establishes the Equalisation Fund into which shall be paid one half per cent of all the revenue collected by the national government each year to be used to provide basic services such as water to marginalised areas to the extent necessary to bring the quality of those services in those areas to the level generally enjoyed by the rest of the nation. Article 260 defines land to include any body of water on or under the surface; marine waters in the territorial sea and exclusive economic zone; and natural resources completely contained on or under the surface. Natural resources are defined to mean the physical non- human factors and components, whether renewable or non-renewable, including both surface and groundwater. Water Act No. 43 of 2016 Section 3 of the Act states the purpose of the Act as being to provide for the regulation, management and development of water resources and water and sewerage services in line with the Constitution. Section 4 enjoins the Cabinet Secretary, the Water Resources Authority, the Regulatory Board, county governments and any person administering or applying the Water Act to be guided by the principles and values set out in Articles 10, 43, 60 and 232 of the Constitution. Section 5 vests every water resource in the national government to be held in trust for the people of Kenya. Section 6 designates the Authority established in section 11 to serve as an agent of the national government and regulate the management and use of water resources. 5 Section 7 legislates that no conveyance, lease or other instrument shall convey, assure, demise, transfer or vest in any person any property, right, interest or privilege in respect of any water resource except as prescribed under the Water Act. Section 9 grants every person the right to access water resources, whose administration is the function of the national government. Section 10(1) requires the Cabinet Secretary, every five years following public participation, to formulate a National Water Resource Strategy (NWRS). The object of the NWRS is to set- out the Government's plans and programs for the protection, conservation, control and management of water resources. It shall contain, among other things, details of- (a) existing water resources and their defined riparian areas; (b) measures for the protection, conservation, control and management of water resources and approved land use for the riparian area; (c) minimum water reserve levels at national and county levels; (d) institutional capacity for water research and technological development; (e) functional responsibility for national and county governments in relation to water resources management; and any other matters the Cabinet Secretary considers necessary. REGULATION OF WATER RIGHTS AND WORKS Section 36 makes it a requirement to obtain a permit for any of the following purposes: - a) Any use of water from a water resource, except as provided by section 37 b) The drainage of any swamp or other land c) The discharge of a pollutant into any water resource d) Any other purpose, to be carried out in or in relation to a water resource, which is prescribed by Regulations made under the Water Act to be a purpose for which a permit is required. 6 INSTITUTIONAL FRAMEWORK The Water Act establishes the following institutions: - A. WATER RESOURSES AUTHORITY (WRA) Section 11 of the Water Act establishes the WRA whose functions under Section 12 are to: - a. Formulate and enforce standards, procedures and regulations for the management and use of water resources and flood mitigation b. Regulate the management and use of water resources c. Enforce Regulations made under the Water Act d. Receive water permit applications for water abstraction, water use and recharge and determine, issue, vary water permits; and enforce the conditions of those permits; e. Collect water permit fees and water use charges f. Determine and set permit and water use fees g. Provide information and advice to the Cabinet Secretary for formulation of policy on national water resource management, water storage and flood control strategies h. Coordinate with other regional, national and international bodies for the better regulation of the management and use of water resources i. Advise the Cabinet Secretary generally on the management and use of water resources. B. BASIN WATER RESOURCES COMMITTEE (WRC) Section 25 of the Water Act empowers the Cabinet Secretary to Gazette a basin water resources committee for each respective basin area designated by WRA. The basin water resources committee shall be responsible for the management of the water resources within a respective basin area and shall operate under the Regulations made by the Authority. Section 27 provides that the powers and functions of the WRC shall be to advise WRA and county governments, at the respective regional office, concerning: - a) Conservation, use and apportionment of water resources b) The grant, adjustment, cancellation or variation of any permit c) Protection of water resources and increasing the availability of water d) Annual reporting to the users of its services and the public on water issues and their performance within the basin area 7 e) Collection of data, analysing and managing the information system on water resources f) Review of the basin area water resources management strategy g) Facilitation of the establishment and operations of water resource user associations h) Flood mitigation activities i) Information sharing between the basin area and WRA j) The equitable water sharing within the basin area through water allocation plans any other matter related to the proper management of water resources C. WATER RESOURCE USERS ASSOCIATIONS (WRUA) Section 29 of the Water Act establishes water resource users associations as associations of water resource users at the sub-basin level. A water resource users association shall be a community based association for collaborative management of water resources and resolution of conflicts concerning the use of water resources. The basin WRC may contract WRUAs as agents to perform certain duties in water resource management. D. NATIONAL WATER HARVESTING AND STORAGE AUTHORITY Section 30 establishes the National Water Harvesting and Storage Authority as a body corporate with perpetual succession and a common seal, capable of suing and being sued in its own name and doing all things that a corporation may lawfully do. Section 32 provides the functions and powers of the WHSA which are: - a) Undertake on behalf of the national government, the development of national public water works for water resources storage and flood control b) Maintain and manage national public water works infrastructure for water resources storage c) Collect and provide information for the formulation by the Cabinet Secretary of the national water resources storage and flood control strategies d) Develop a water harvesting policy and enforce water harvesting strategies e) Undertake on behalf of the national government strategic water emergency interventions during drought 8 f) Advise the Cabinet Secretary on any matter concerning national public water works for water storage and flood control E. THE WATER SERVICES REGULATORY BOARD Section 70 of the Water Act establishes the Water Services Regulatory Board (WASREB) whose principal object is to protect the interests and rights of consumers in the provision of water services. Section 72 provides that the powers and functions of WASREB as being to: - a) Determine and prescribe national standards for the provision of water services and asset development for water services providers b) Evaluate and recommend water and sewerage tariffs to the county water services providers and approve the imposition of such tariffs in line with consumer protection standards c) Set licence conditions and accredit water services providers d) Monitor and regulate licensees and enforce licence conditions e) Develop a model memorandum and articles of association to be used by water companies applying to be licensed by the Regulatory Board to operate as water services providers f) Monitor compliance with standards including the design, construction, operation and maintenance of facilities for the provision of water services by the water works development bodies and the water services providers g) Advise the Cabinet Secretary on the nature, extent and conditions of financial support to be accorded to water services providers for providing water services h) Monitor progress in the implementation of the Water Strategy and make appropriate recommendations i) Maintain a national database and information system on water services j) Establish a mechanism for handling complaints from consumers regarding the quality or nature of water services k) Develop guidelines on the establishment of consumer groups and facilitate their establishment l) Inspect water works and water services to ensure that such works and services meet the prescribed standards 9 m) Report annually to the public on issues of water supply and sewerage services and the performance of relevant sectors and publish the reports in the Gazette n) Make Regulations on water services and asset development which shall include business, investment and financing plans in order to ensure efficient and effective water services and progressive realization of the right to water services o) Advise the Cabinet Secretary on any matter in connection with water services p) Make recommendations on how to provide basic water services to marginalised areas. F. WATER SECTOR TRUST FUND Section 113 establishes a water sector financing institution known as the Water Sector Trust Fund as a body corporate with perpetual succession, a common seal and power to sue and to be sued and, in the exercise and performance of its powers and functions, to do and permit all such things as may lawfully be done or permitted by a body corporate in furtherance of its objects. Section 114 provides that the object of the Water Sector Trust Fund is to provide grants to counties, in addition to the Equalisation Fund and to assist in financing the development and management of water services in marginalized areas or any underserved area including: - a) Community level initiatives for the sustainable management of water resources b) Development of water services in rural areas considered not to be commercially viable for provision of water services by licensees c) Development of water services in the under-served poor urban areas d) Research activities in the area of water resources management and water services, sewerage and sanitation. Section 115 provides that the powers and functions of the Fund shall be exercised and performed under the direction of a Board of Trustees holding office under a trust deed drawn by the Cabinet Secretary. The Board of Trustees shall consist of a chairperson and six other members. The fund shall also have a Chief Executive Officer and other employees. G. WATER TRIBUNAL Section 119 establishes a Water Tribunal whose chairperson and staff are appointed by the Judicial Service Commission. Section 121 directs the Tribunal to hear and determine appeals from any person or institution directly affected by the decision or order of the Cabinet 10 Secretary, WRA and Regulatory Board. The Tribunal also hears and determines any dispute concerning water resources or water services where there is a business contract except where the parties agree to an alternative dispute resolution mechanism. Section 124 provides further relief to a person aggrieved by a decision of the Tribunal to appeal within twenty-one days from the date of that decision to the Land and Environmental Court. IN ELC CONSTITUTIONAL PETITION NO. 43 OF 2019 - ISAIAH LUYARA ODANDO & ANOTHER V NATIONAL MANAGEMENT ENVIRONMENTAL AUTHORITY & 2 OTHERS; COUNTY GOVERNMENT OF NAIROBI & 5 OTHERS (INTERESTED PARTIES) EKLR, the Petitioners sought for a declaration that the Respondents had violated their rights and fundamental freedoms enshrined in the Constitution of Kenya. This was a class action relating to the alleged violation of the rights and fundamental freedoms enshrined in the bill of rights under Articles 10(2) (b), 26(3), 29(f), 42, 43(1) (d), 47, 69 and 232(1) (c) of the Constitution of Kenya. The Petitioners was also seeking for permanent conservatory orders to compel the Respondents to prevent the upstream and downstream pollution of Nairobi and Athi Rivers. Additionally, they sought for permanent conservatory orders to compel the Respondents to implement permanent restoration of the Nairobi and Athi River waters. Further, the Petitioners sought conservatory orders to compel the Respondents to shut down polluters and force industries to treat their waste before disposing it into the rivers and for the Respondents to remove more than 4,000 structures encroaching on riparian land and build embankments and barriers to allow the river to flow free from contamination. The Petitioners also seek compensation for all the members of the public who fall within the bracket of this class action. The court granted the order compelling the Respondents to adopt the precautionary principle in waste management including decommissioning the Dandora dumpsite, relocating it and rehabilitating the site as well as to clean up Nairobi and Athi Rivers from the source in Nairobi to the Coast until the whole river is clean and free of pollution. The Respondents were also required to eliminate air pollution. 11